February 14, 2013
This responds to your inquiry (12-176) asking whether you must exercise recusal in a negligence action because an attorney who represented one of the defendants prior to the trial has been hired as a law clerk in your court. You indicate that defense counsel now seeks your recusal in the post-trial proceedings. Although the newly hired law clerk will be providing services to other judges within the district, his/her office will be in your chambers and you will be his/her supervising judge.
If the law clerk was involved in the case on which the law clerk’s former employer is appearing, you must insulate the law clerk and disclose to the parties and their attorneys the law clerk’s prior employment and involvement in the case and that you have insulated the law clerk. Thereafter, if a party seeks recusal, you should exercise your discretion in light of the facts presented in determining whether recusal is warranted.
Enclosed, for your convenience, is Opinion 09-27 which addresses this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)